Legal hold up

Are missing records the reason for stalled lawsuit?  

BREAKING: Counterclaim now likely against Samaritan Hospital

for allegedly withholding parts of Lisa's medical record

By David Baker Posted Monday Oct 3, 2011 

   Back in mid July, someone acting on behalf of lawyers for Samaritan Hospital walked into the records room at the Rensselaer County Clerk’s office, was greeted by Deputy County Clerk Greg DeJulio or one of his staff, and handed in a 17-page summons and complaint.

  The papers filed that day started a lawsuit against me. In the complaint, the operators of the hospital claim that my use of a Northeast Health logo on my site is an attempt to make people think the site is maintained by the company, and is damaging its reputation. 

   The lawsuit also claims that the Internet address of my site, ‘northeasthealthclaims.com’, is a violation of state laws. But – as people who are sued often say – I believe both claims are without merit. And I will vigorously defend this suit. 

 At least I will, if and when it is served on me. Twelve weeks has passed since the action was filed. So far, it has not been served. 

    So that prompts a question: Why would the hospital pay a lawyer to draft a complaint, pay $210 to file it in state Supreme Court – and then not take the next step, which is to serve it on the defendant?

   Only the hospital’s management and maybe their lawyers know the answer to that question. But I can hazard a guess at it. There are two possibilities. And they both could be because of what was in a letter I sent to Northeast’s CEO on the same day that, unknown to me, the lawsuit was filed in Troy.

   In that letter, I made the case that publishing details of medical malpractice lawsuits filed against Samaritan and other hospitals is in the public interest, but keeping these cases out of the public’s view damages the public while benefiting only the hospitals, the lawyers on both sides, and the media. That argument, which Samaritan’s CEO would have received just after the lawsuit against me was filed, may have been seen as a defense the hospital didn’t want to have recorded in court paper’s or presented at a trial. 

   But there’s another possible reason: In that letter, I also said that there is an alternative to my web page, with all these lawsuits detailed on it, being brought to the attention of tens of thousands of people in the Capital Region. That, I said, is if Northeast Health does three things: First, it must stop fighting every malpractice claim, as it does now even when it is obvious that it is liable. Instead, it should immediately acknowledge errors that have caused death or injury and pay compensation – which in many cases it eventually does anyway – without first putting victims through the second anguish of a long but unreported legal battle that also happens to enrich the lawyers and the media.

   Second, it must give up the $74,000 it received for treating Lisa from the time she was injured while in Samaritan Hospital’s care to the time she died, money which under laws enacted since them, it would not have received in the first place. 

   And third – and this is what I believe may have stopped the lawsuit against me in its tracks – the hospital, must finally turn over documents that are still missing from medical records generated during the four weeks Lisa was in Samaritan. After receiving a first set of Samaritan’s records shortly after Lisa died, I noticed almost immediately that certain documents – one doctor’s transcribed consultation reports – were not included in the 556 pages obtained from the hospital. This was strange because each of the other doctors’ dictated consult notes were there.

   So I made a written request to the hospital’s attorneys for this doctor’s consult reports. This produced only an evasive and telling response. It said: ‘Tell us why you think we have them.’

   It got more bizarre. In a post on this page in June 2006 I said that I now had some of the pages. This was because one of this doctor’s transcribed notes was included in a second copy of the records I had obtained from the hospital. Clearly, contrary to what the lawyers were claiming, he had dictated his notes, and now here was the one he dictated after seeing Lisa when she was first admitted – which was not in the first copied set of records. The suspicion was that before the records were copied a second time for me someone had intended to remove all of this doctor’s transcribed notes but had missed one of them.

   A month after my comment was posted, the hospital’s lawyers served on me a ‘notice to produce,’ demanding copies of the documents referred to in the post. It appeared that they had a problem; if the hospital or its lawyers continued to withhold the pages I might then produce them and they could be in trouble for withholding evidence. But if they handed over the missing pages, they might be giving me documents I didn’t have that would damage their defense. 

   So they evidently decided the only way out was to demand that I give them pages of their client’s records.

   The doctor whose notes were missing was the one in charge of Lisa’s diabetes management. Sources in the hospital had told me that he had been extremely angry after Lisa was found almost dead, with a blood glucose level near zero, and had been heard yelling that it was all the fault of “the stupid nurses.” And according to the hospital’s records, he would have had reason to be angry; that afternoon he had called in an order that was written into the chart which said that if Lisa became hypoglycemic, the nurses were to follow the hospital’s hypoglycemia protocol. Lisa did become hypoglycemic; the record clearly shows that the printed protocol was not followed. His patient was due to go home the next day.

   Now she was on life support. But if this doctor said anything in a dictated note about it being the nurses’ fault it would have seriously damaged the hospital’s defense and could have been enough to produce a reasonable settlement offer. It would also have meant the doctor would have broken the medical profession’s unwritten code of silence on others’ mistakes. The temptation to remove such a statement from the records would have been enormous.

   Still trying to get the records, the following year I requested a hearing in the chambers of the judge in the case, Stephen Ferradino, specifically about the missing pages. But at the hearing, Ferradino showed little interest in compelling the hospital to produce the notes, even as he conceded that records go missing. When I suggested that the each of the attorneys state on the record that they and their clients didn’t have the notes and had never had them, all three dodged the question, saying they were offended by my suggestion. 

   Later, the hospital’s lawyers stalled me for months by saying the insurance carrier was moving toward a settlement, while they instead were working with a doctor at Albany Medical Center Hospital on a motion to dismiss the case. In his affidavit, the doctor, Matthew Leinung, claimed among other things that those nurses who ignored a doctor’s written order to use the hospital’s hypoglycemia protocol did not fail to meet the standard of care. Judge Ferradino accepted this outrageous claim that ignores the most basic care of a patient with diabetes and dismissed the entire case on a summary judgment.

   So now, five years later, the hospital has filed a lawsuit against me, a lawsuit that refers in several paragraphs to the earlier case. But it was filed by a different lawyer, one who probably knew nothing about the allegedly withheld medical records. It was only when the hospital’s management received my letter that they and the new lawyer realized they might have opened the door to another attempt to compel production of those missing notes, this time perhaps before a judge who, unlike Ferradino, wouldn’t let Samaritan Hospital get away with concealing its records.

   That’s my theory. And if its wrong, then why hasn’t the new lawsuit been served? The logo is still on my site. The site is still at ‘northeasthealthclaims.com’

   So what are they waiting for? What is stopping them?

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